DVFW and Comcare (Compensation)

[2019] AATA 2376

DVFW and Comcare (Compensation) [2019] AATA 2376 (8 July 2019)

Division:  GENERAL DIVISION

File Number(s):  2018/3869, 4369

Re:         DVFW

APPLICANT

And        Comcare

RESPONDENT

Decision

Tribunal:          Mrs J C Kelly, Senior Member

Date:    8 July 2019

Date of written reasons:         2 August 2019

Place:   Sydney

For the reasons given orally at the interlocutory hearing of this matter on 8 July 2019, the Tribunal decides that Anglicare’s objection to produce documents under summons is disallowed. Therefore, Anglicare must produce the documents specified in the Summons to Produce Documents issued on 7 June 2019. 

........................................................................

Mrs J C Kelly, Senior Member

Catchwords

Summons for production of documents – objection to production – application of s 10(D) of the Family Law Act 1975 – admissibility of evidence arising from family counselling in Tribunal proceedings – documents relevant to proceedings on the face – objection to production disallowed

Legislation

Administrative Appeals Tribunal Act 197 (Cth) s 40A

Family Law Act 1975 (Cth) ss 10D(1), 10D(2), 10E(1)

Secondary Materials

Australian Government Attorney-General’s Department, Family Counsellors in the Family Law System (2007)

Australian Government Attorney-General’s Department, Frequently Asked Questions: Family Dispute Resolution Practitioner Obligations (2009)

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

2 August 2019

1. Ms Wolnizer, who appeared for Anglicare to object to a summons served on Anglicare in these proceedings, argued that the subject matter of the summons is communications between a family counsellor and the Applicant under the Family Law Act 1975 (Cth) (the Act) s 10D(1).  The counselling occurred from January 2011 until May 2013.

Subsection 10D(1) of the Act provides:

A family counsellor must not disclose a communication made to the counsellor while the counsellor is conducting family counselling, unless the disclosure is required or authorised by this section.

1. The Tribunal asked why Anglicare would not be obliged to disclose the communication pursuant to s 10D(2) of the Act, which provides:

   A family counsellor must disclose a communication if the counsellor reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth a State or a Territory.

2. Ms Wolnizer said that Anglicare was trying to follow the Tribunal's processes. The ’Notice to a person summoned to produce document’ document received by Anglicare says that a person may object to producing the documents that are requested under the summons.  If the Tribunal decides that Anglicare still needs to produce the documents then Anglicare would comply in accordance with s 10D(2) but Anglicare wishes to make the objection.

3. In other words, Anglicare was drawing to the Tribunal's attention the fact that this material falls within s 10D(1) of the Act.

4. The Tribunal referred to s 10E(1) of the Act which provides:

   Evidence of anything said, or any admission made, by or in the company of:

   (a)  a family counsellor conducting family counselling; or

   (b)  a person (the professional) to whom a family counsellor refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;

   is not admissible:

   (c)  in any court (whether or not exercising federal jurisdiction); or

   (d)  in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).

5. Ms Wolnizer said that it is not settled whether s 10E(1) would apply to the tribunal proceedings and Anglicare would argue that it does apply. The Attorney General’s Department guidance material for family counsellors says that the provisions should be interpreted in the widest way possible and indicates that s 10E would extend to courts not exercising family jurisdiction and apply in any jurisdiction.

6. Ms Wolnizer said that on that basis, Anglicare did not see the relevance of the material if it ultimately cannot be admitted into evidence.

7. Mr Schofield, who appeared for the Respondent, said that it was not appropriate to make submissions on admissibility of the documents into evidence until the Respondent had seen the documents.  The Respondent’s position was that there is a legal obligation to produce the documents notwithstanding s 10D(1) because s 10D(2) says that these documents can be disclosed in order to comply with the law of the Commonwealth and the summons is a tribunal power exercised under the legislation. He argued that there was no discretion for Anglicare to refuse to produce those documents.

8. Mr Schofield argued that the documents, on the face of it, were relevant to the issues the Tribunal has to consider. He said that the Tribunal is dealing with an application for compensation arising from a claim for mental illness which goes back a while and the summonsed records also go back a while.

9. He said that that in itself is enough for the summons to be issued and further questions of relevance might arise in relation to the admissibility of those documents but again it would be premature to address the relevance of the documents before the Respondent had even seen them, particularly when there is an obligation for them to be produced.

10. DVFW questioned whether the documents should be produced because Mr Schofield had sent an email to the Registry saying that he has a copy of the documents produced by Anglicare to the Tribunal in the Applicant’s 2015 proceedings. DVFW said they are the exact same documents. Her last session at Anglicare was in 2013. 

11. Mr Schofield said the Respondent had material that was produced in the 2015 proceedings but did not know whether it is the same as what would be produced in response to the present summons.

12. The Tribunal made the following comments. There may have been material that was missed in 2015.  If the Respondent sought to tender any medical evidence which relied on the produced documents, it might be arguable that the medical evidence was not admissible.

13. Mr Schofield responded that the Respondent’s position is that the provisions in s 10E only relate to family law proceedings and there are a number of principles which say that the scope of that legislation appears on the face of it to be much broader than it actually is and that it does not have the effect of intruding on other areas of law.

14. The Tribunal’s view is that the scheme of the Act requires the production of the documents specified in the summons to Anglicare.  The questions of whether certain material falls within the category of s 10D(1) and whether it is admissible in the Tribunal are issues to be addressed at the hearing.

15. The Tribunal appreciated Anglicare's concern and that it was alerting the Tribunal to the nature of the documents and the potential arguments in relation to admissibility. For those reasons, Anglicare’s objection to the production of the documents specified in the summons is disallowed. 

    I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

....................................[SGD]....................................

Associate

Dated: 2 August 2019

Date(s) of hearing:

8 July 2019

Applicant:

Self-represented, by telephone

Solicitors for the Respondent:

Mr A Schofield, Comcare

Representative for Anglicare:

Ms C Wolnizer, Anglicare Legal Support Officer